Poker Queen v. MBNA - best plan of attack???

[Poker Queen]

Hi all,

 

Some while ago I sent MBNA an S.A.R - (Subject Access Request) and received an excel type print out detailing the charges that had been levied over the last few years (not sure how long now, don't have it with me, but certainly not going back to when the account was opened).

 

Anyway, things have been a bit chaotic and I hadn't gotten around to claiming any of these back yet. I have been continuing to make the minimum payments to them - although these are only just about covering the interest they're charging each month. On a debt of around £10k I've been making regular payments of around £250ish per month and all but about £2 of this has been paying off the interest they're charging

 

Then a couple of things happened - firstly, my last direct debit to MBNA went through at £305 (more than £50 more than usual, taking my current account overdrawn) and I also discovered on here the threads about requesting your Credit Card Agreements and the fact that until they do this then your account is in dispute and your are not liable to make any payments to them. I have therefore requested the CCA from them - I'm still waiting to hear and they have now passed the 12 working days deadline - and I havetherefore cancelled my direct debit, which I'm glad of as this months statement claims the minimum payment due is now £360 - I've not used the card for several years by the way.

 

My big question is, whilst waiting to hear if they can find a true copy of the original CCA, and whilst payments to them are on hold pending their finding the agreement, should I start attempting to reclaim the charges from them??

 

Apologies if I have waffled on a bit here, and very grateful of any guidance here.

 

Thanks very much in advance.

[Hopeful1]

Hi ya Poker Queen.

 

Yes! Get in your claim for charges. However, if they have not sent all the info you need, then i would write to them to say they have not fully complied with your SAR request. You can list the dates you are missing.

 

Until they supply an agreement the account is in dispute and the ball is in your court with regards to payment.

 

MBNA will probably hassle you and bombard you with millions of payment demands, but they cannot legally enforce the debt without the agreement.

 

Keep posting up your progress and people will offer you support.

 

Best Wishes

[Poker Queen]

Thanks for that hopeful.

 

I seem to remember reading something on here somewhere saying that you could either claim the debt to be uneforceable as they don't have the CCA or you could claim the charges back, but you couldn't do both? Something about claiming back the charges is admitting the presence of a contract between the two parties so I couldn't then say that their agreement is not enforceable and stop making payments.

 

I certainly don't want to ruin my chances of saying to them "No, you don't have a true copy of the CCA as required and therefore I am under no obligation to continue making payments to you" as the level of charges - large though they might be are unlikely to wipe out the total debt.

 

Am I making any sense?! If I can claim back the charges and stop making payments until such a time as they have provided the correct paperwork then fantastic, but that sounds as if it could be a little too good to be true. Can anyone advise??

 

Thanks

[Hopeful1]

You have to decide what you want to do.

 

You are right, you cannot deny and then claim.

 

If you don't want to acknowledge the debt, then just send the CCA. If they don't comply then they are not legally entitled to enforce the debt. It will still exist though.

 

The other option is to reclaim charges as i did for my hubby. We withheld payments whilst we were claiming. We did that on the basis that the account was in dispute until we knew what the true balance was. We also knew they did not have an agreement, so if it all blew up in our faces, the ball was in our court because they had no legal right to enforce the debt. We didn't mention the lack of agreement to MBNA though.

 

Hubby was left with a small outstanding balance and we now want to repay this with reclaimed PPI

[banker_rhymes_with]

Hello All!

 

"You are right, you cannot deny (the Debt) and then claim (Charges/PPI)."

 

That is a good point worth bearing in mind. I'm sure many could easily shoot themselves in the foot on that one.

 

It does all depend on your financial position. I'm going after the MBNA on many fronts, see the Thread Links below, as issues I am pulling together there may help you against the nice MBNA:

 

Getting MBNA before they get Me!

 

MBNA PPI Unsecured Loans Eyes Wide Shut

 

I have Card Charges going back to 1998. I also have all my Paperwork I think, although no sign of a 1998 Consumer Credit Agreement (CCA) for the Card itself.

 

I'm happy to pay off what I have spent and owe, so won't use the potential lack of a CCA on their part against them...unless my financial circumstances change (in which case all bets are off)!

 

So, I think for the Card Charges Claim, I'll just send a Subject Access Request (S.A.R.) and will proceed on the basis that they probably have a CCA from 1998. Main aim is to get the 10 Years of Charges plus interest back. I'm also after them for PPI on Loans, but those Claims are going to be much harder to get right than the Card Charge Claim.

 

Good to know how best to proceed, however, as it would've been silly to deny the Debt and then claim back Charges on it! Obvious really, but a simple error that many may make if they don't plan things well enough ahead before making a Claim.

 

Good luck with it anyway.

 

Cheers,

BRW

[Poker Queen]

Hi there,

 

I have now had a response from MBNA to my request to see a copy of the Consumer Credit Agreement.

 

For both cards what they appear to have sent me is my original application along with their current terms and conditions (they refer to a £12 fee for late payment etc) and a copy of my most recent statement.

 

I am fairly confident that these applications do not contain all the prescribed terms and are therefore unenforceable, but would be extremely grateful of a pair of expert eyes to confirm one way or the other.

 

I would also like to say that whilst I do not necessarily wish to 'get away' without paying - however this company have made my life pure hell at times over the past 6 years or so. At one time I was on the phone to them in tears trying to cancel the PPI I am paying on one of the accounts, but as much as they would let me do was reduce it to a lower level. Also the amount of interest I have been paying them over the last few years (almost all of the £250 per month I have been paying on a £10k debt is swallowed up in interest) I would have paid them around £10k back in around 4 years and I have been paying for longer than that.

 

Having been paying back the £250 per month for many years - without spending anything extra on my card the last 2 monthly payments have rised to £310 and then £360 - bringing it to the point where I just can't afford the payments any longer and something has to be done. How can they just increase the interest rate like that when I haven't missed a payment in years?? Anyway they've shot themselves in the foot a bit there because whilst I would probably have begrudgingly continued to make the £250 payments, I am now determined to fight them!!!

 

Anyway below are the applications/agreements they have sent me on the 2 accounts.

 

Thank you very much to anyone who can offer an opinion on these.

 

Front of Application 1:

 

Back of Application 1:

 

Application 2:

[steven4064]

What they have sent is clearly an application form and is not enforceable. It does however, proabably (maybe) comply with s78(1) of the CCA 1974.

 

I would write back and thank them for their reply and tell them that what they have sent may comply with s78(1) of the CCA 1974 but, as it is not a copy of an executed agreement, it does not prove that you have an agreement with them or that you owe them anything. Tell them that you therefore do not acknowldege the alleged debt.

 

Once you get a proper agreement (if ever) you can then claim back charges. (A few posts ago it was said that you can'y both deny the debt and reclaim charges. THis is true. However, once they have come up with a copy of an executed agreement, you can then go on to reclaim charges).

 

Finally, if they don't (or while they don't) provide a copy of an executed agreement and they continue to hasell you on the phone - read this thread

[Poker Queen]

Thanks very much for your reply.

 

Perhaps I am being daft here, but after extensive reading around this site, clearly I still have much, much more to learn.

 

You say that whilst this is not an enforceable agreement they have (probably) complied with s78 (1) of the CCA 1974.

 

Can you - or anyone else - explain this a little better. I thought that to comply with the CCA 1974 they had to produce a properly executed agreement with all the terms. Surely if they have failed to do this, then they have failed to comply? Clearly I'm missing something here, and apologies for sounding thick, but could someone please explain this for me?

 

Thanks very much for all your help.

 

PQ

[steven4064]

s78(1) was modified in the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983. Under these regulations they can comply with a s78(1) request by sending a copy of the agreement with personal details removed or not there (so they can "recreate" the agreement. Some send a copy of the application form - which may not strictly comply) plus a copy of relevant T&Cs. Thus, what they have sent you complies with these regulations.

 

However, what they have sent you is not a copy of an executed agreement and therefore could not be used to get a court to make an enforcemnet order. Hence, it complies with s78(1) (as amended) but is not enforceable.

[Poker Queen]

Hi all,

 

At the beginning of the month I sent MBNA the following letter which I adapted from one I had seen elsewhere on this site:

Dear Sir/Madam

 

Thank you for your letter of 12th February 2008, the contents of which have been noted.

 

You have, however, failed to respond to my legal request to supply me a true copy of the original Consumer Credit Agreement for the above account.

 

On the 1st February 2008 I wrote to you requesting a copy of the credit agreement and other information under the Consumer Credit Act 1974 (Sections 77-79).

 

These documents I requested should be readily available as proof of your legal right to collect this account under the Consumer Credit Act 1974.

Furthermore, you are aware that the Consumer Credit Act allows 12 working days for a request for a true copy of a credit agreement to be carried out before you enter into a default situation.

 

If that request is not satisfied after a further 30 calendar days you commit a summary criminal offence.

 

The 12 working days expired on February 20th, and the further 30 calendar days are due to expire on March 21st.

As you are no doubt aware section 77(6) states:

 

If the creditor fails to comply with Subsection (1)

 

(a) He is not entitled, while the default continues, to enforce the agreement.

 

And

 

(b) If the default continues for one month he commits an offence.

 

Therefore this account has become unenforceable at law.

 

You have failed to comply with a lawful request for a true, signed copy of the said agreement and other relevant documents mentioned in it, failed to send a full statement of the account and failed to provide any of the documentation requested.

 

Consequentially any legal action you pursue will be averred as both UNLAWFUL and VEXATIOUS.

 

Furthermore I shall counterclaim that any such action constitutes unlawful harassment.

 

Please note you may also consider this letter as a statutory notice under section 10 of the Data Protection Act to cease processing any data in relation to this account with immediate effect.

 

This means you must remove all information regarding this account from your own internal records and from my records with any credit reference agencies.

 

Should you refuse to comply, you must within 21 days provide me with a detailed breakdown of your reasoning behind continuing to process my data.

 

It is not sufficient to simply state that you have a ‘legal right’; you must outline your reasoning in this matter and state upon which legislation this reasoning depends.

 

Should you not respond within 14 days I expect that this means you agree to remove all such data.

 

Furthermore you should be aware that a creditor is not permitted to take ANY Action against an account whilst it remains in dispute.

 

The lack of a credit agreement is a very clear dispute and as such the following applies.

 

* You may not demand any payment on the account, nor am I obliged to offer any payment to you.

* You may not add further interest or any charges to the account.

* You may not pass the account to a third party.

* You may not register any information in respect of the account with any credit reference agency.

* You may not issue a default notice related to the account.

 

I reserve the right to report your actions to any such regulatory authorities as I see fit.

You have 14 days from receiving this letter to contact me with your intentions to resolve this matter which is now a formal complaint.

 

Additionally, I would like to make a complaint in relation to the quantity and frequency of telephone calls that I have received from your company, and agents acting on your behalf which I deem to be personally harassing.

 

I have verbally requested that these stop, but I am still receiving calls.

I now require all further correspondence from your company to be made in writing only.

 

I am of the view that your continued harassment of me by telephone puts you in breach of Section 40 of the Administration of Justice Act 1970, and the Protection from Harassment Act 1997.

 

If you continue to harass me by telephone, you will also be in breach of the Communications Act (2003) s.127 and I will report you to OFCOM, Trading Standards and The Office of Fair Trading, meaning that you will be liable to a substantial fine.

 

Be advised that any further telephone calls from your company will be recorded.

Communicate in writing and ONLY in writing, your telephone calls will NOT be answered.

 

However, calls will trigger complaints to the regulatory bodies.

 

I would appreciate your due diligence in this matter.

 

I look forward to hearing from you in writing.

 

Yours faithfully

 

 

At the end of last week I then received the following response.

 

 

Now I understand that this is a pretty standard response from them, however bearing in mind that they say they will not enter into any further correspondence on this, what does anyone advise should be my next step? Is there any point in writing back to them pointing out that they have not yet supplied an enforceable CCA or is there another avenue I should pursue instead/as well now???

 

Really grateful for any advice anyone can offer.

 

Thanks very much in advance.

 

PQ

[Hopeful1]

Hi PQ.

 

Have you sent the S.A.R? Would the charges made a dent in this balance?

[Poker Queen]

Hmmm- not recently. I did send them the SAR a while ago but then didn't get the chance to follow through. I've clearly had more charges added recently so possibly worth sending another SAR, but I was under the impression from what I was told above that the application forms they send me in response to my CCA request were unenforceable. I just need to try and proove this to MBNA I believe!

[Hopeful1]

Hmmm- not recently. I did send them the S.A.R - (Subject Access Request) a while ago but then didn't get the chance to follow through. I've clearly had more charges added recently so possibly worth sending another SAR, but I was under the impression from what I was told above that the application forms they send me in response to my CCA request were unenforceable. I just need to try and proove this to MBNA I believe!

 

 

I wasn't sure which route you were taking. If you are using the lack of agreement / unenforceability route then the SAR isn't important.

 

As an aside though, you don't need to send another one. They should have complied the 1st time.

 

Good luck

[banker_rhymes_with]

Hello PQ and All!

 

It may be a good sign that their Letter to you was only signed by a lowly Customer Assistance Manager. Possibly a sign that they are about to bale out and pull the Black and Yellow Handle.

 

I don't know where Customer Assistance Manager fits in the MBNA Food Chain, but it must be a lowly and meanial position, like a Serf or MBNA Baldrick. Most Letters they send are dealt with by at least an MBNA Galactic Vice President or, sometimes, if you are very lucky, by an MBNA God, as they usually have at least 2,000-3,000 of those able to Sign Letters!

 

I expect the last Letter you'll get will be from the MBNA Cleaner or, should I say, MBNA Senior World Hygiene Executive. After that they'll give up, as they have nobody below that Level I think.

 

Cheers,

BRW

[Poker Queen]

Hi there all,

 

MBNA have now started up the phone calls again - around once per day. They have also left a message with my parents (my parents address is the address that they have for me as I am mainly living now in Belgium but spend at least a couple of days each week in the UK with work staying at my parents house).

 

They believe they have sent already an enforceable agreement I believe they haven't - we're at a bit of an impasse.

 

Their last letter said that this was their last word on the subject but clearly I need the phone calls (especially to my parents) to stop. I have told them previously to remove my phone numbers from the their files, which they said they would do, but clearly they have reinstated them.

 

Do I contact Trading Standards, OFT and Ofcom or do I need to write to them again telling them that I will do this before I make contact??

 

Additionally MBNA are now showing on my credit record as 1 month late, - no big problem there I guess, but that will clearly become a default at some point unless I can persuade them that without the enforceable CCA they do not have my permission to pass any information about my to the CRAs.

 

I realise that all this info is on here somewhere, but as I alluded to earlier I am currently living in Belgium (where my husband's job moved to) but working mainly in the UK, so travelling constantly and with easy access to the internet only at weekends. My mind is therefore getting a little fried with all the reading I'm trying to do, so any advice anyone at all can offer would be really very gratefully received.

 

Thanks in advance.

 

PQ

[Poker Queen]

Also.... if I need to contact Trading Standards, OFT & Ofcom to complain about the phone calls after I have written asking that they cease, does anyone have either a template for this or some guidance as to how I should actually word this?

 

Thanks again so much for any help anyone could give me.

 

PQ

[banker_rhymes_with]

Hello PQ!

 

If you have not already done do, send them this:

 

Harassment by telephone - response letter

 

Then make a note of all Calls from them, time, date, and if you can, use a Camera to take Images of their Number calling you. Say, your Mobile's Call Log, or the List of Callers if any of your Phones have a Calling Line Identity (CLI) Display. Record any Messages they leave if you can as well.

 

Don't speak to them, as it's never worth it.

 

This may seem familiar:

 

Credit Today - Claim chasers to be cleaned up

 

And this:

 

OFT anger over debt collection practices

 

Just stay calm and don't let them annoy you. Tell your Parents what these people are like and that they derseve no respect.

 

Then keep writing the Harassment Letter, and then submit a complaint to anyone that will listen, and many will. The I.C.O. is well worth approaching, and they have an on-line Complaints System, where you can upload things like PDF or Word Documents with any evidence to back up your claim.

 

I hope this helps.

 

Cheers,

BRW

[Hopeful1]

Hi PQ.

 

Here's a link for Trading Standards.

 

Write to your local office with regards to not sending you a true copy of the agreement and the telephone calls. Include copies of all relevant correspondence to back up your complaint.

[Poker Queen]

An update to this......

 

After some to-ing and fro-ing with me telling MBNA that they had failed to provide a properly executed copy of the CCA and MBNA telling me that they had, it went quiet for a while.

 

Although I did at one point get a letter from them saying that unless I paid this debt straight away they would have to consider writing it off!!! Go ahead I thought!!!

 

It now seems that MBNA have assigned the debt, respective rights, title and interest to Arrow Global, LLC effictive (sic) 19th Dec 2007. Arrow have written to me saying that they are now the data controller of my personal data contained in the records of this account.

 

They also say that Frederickson International Limited has been appointed by Arrow Global LLC to manage my account and that all correspondence regarding this account be directed to them.

 

My questions are : Why has this been assigned to Arrow effective last December when the first letter I sent disputing this debt with them was not even sent until earlier this year.

 

Secondly should I now send a CCA request to Arrow, to Fredrickson , to both?

 

Would be grateful of a quick response from someone on this as I have been away for a short while and have only just seen this letter telling me the last date by which I should make a payment to Fredrickson before they commence court action is 28th October. Please help.

[Hopeful1]

Didn't want to read and run, but am due back to work!

 

In short i would send another CCA to head them off and then we can look at all the ifs buts and maybes.

 

Get that done and i'll be back tonight to 'talk' some more!!

[Poker Queen]

Thanks very much for that, and I appreciate that you have probably now left for work .... but who do you (or anyone else reading this) advise that I send the CCA to?

 

I will send one to Fredericksons International today as it appears that they are the ones demanding the payment, but I'm not sure whether I also need to send something to MBNA and Arrow also.

 

Any advice would be gratefully received.

 

Thank you.

[steven4064]

Send it to Fredricksons in the first instance - they have the responsibility to get paperwork from the others.

[Poker Queen]

Thanks for the advice above, I sent the CCA request to Frederickson's so will wait to see what they come back with on that.

 

I had, however, 2 accounts with MBNA. MBNA were responding to my separate queries on these accounts in a single letter, however, they have sold each of the accounts to a different DCA.

 

I therefore received a letter yesterday from Link (dated 27 Oct!) stating that I recently received a letter from them (no I didn't - this is the first correspondence I have seen from them) and that that letter was a legal requirement under Section 136 of the Law of Property Act 1925 (no idea what this is about I don't own my own home).

 

They say that unfortunately if I do not call (I have no intention of doing so!) that they will take further recovery action and that this may lead to the balance being increased through court costs and interest charges. They are therefore giving me the option of paying back the assigned balance to Link Financial (isn't that kind of them, they will allow me to pay them in full for a debt that MBNA cannot enforce and have sold on to someone else in the hope that I'll suddenly believe it can be enforced!!).

 

There is also an email address on this letter. I am about to send the letter below (kindly borrowed and amended from elsewhere on this site). Would it be OK to email it also or should I just send it by registered post? Also, do I still need to include the £1 payment as I am asking the DCA to produce the CCA which MBNA have so far been unable to do.

 

Any comments on the letter below would be gratefully received before I head off to the post office.

 

Thanks very much

 

PQ

_______________________________

 

Dear Sirs,

 

Account no xxxxxxxxxxxxxx

 

 

This account is in Dispute .

 

On 01/02/2008 and again on 06/03/2008 I wrote to MBNA requesting that they supply me a true copy of the executed credit agreement for this account.

In response to this request I was supplied a mere application form which did not comply with the requirements of the Consumer Credit Act 1974.

 

The document sent purporting to be a credit agreement does not contain any of the prescribed terms as required by section 60(1) Consumer Credit Act 1974. The Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) made under the authority of the “1974 Act” sets out what the prescribed terms are, I refer you to Schedule 6 Column 2 of SI 1983/1553 for the definition of what is required. Suffice to say these terms are not present in the document

 

Since this document does not contain the required prescribed terms it is rendered unenforceable by s127 (3) consumer Credit Act 1974, which states

 

127(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a)(signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

 

This situation is backed by case law from the Lords of Appeal in Ordinary (House of Lords) the highest court in the land. Your attention is drawn to the authority of the House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the Consumer Credit Act 1974 the agreement cannot be enforced.

 

In addition should you continue to pursue me for this debt you will be in breach of the OFT guidelines, I draw your attention to the Office of Fair Trading’s guidance on debt collection

The OFT guidance which was issued July 2003 (updated December 2006) relating to debt collections and what the OFT considers unfair, I have enclosed an excerpt from page 5 of the guidance which states

 

2.6 Examples of unfair practices are as follows:

 

h. Ignoring and/or disregarding claims that debts have been settled or are disputed and continuing to make unjustified demands for payment

 

I require you to produce a compliant copy of my credit agreement to confirm I am liable to you or any organisation, which you represent for this alleged debt, if you cannot do so I require written clarification that this is the case. Should you ignore this request I will report you to the Office of Fair Trading to consider your suitability to hold a credit licence in addition to a complaint to Trading Standards, as you will be in breach of the Administration of Justice Act 1970 section 40

 

Since the agreement is unenforceable, it would be in everyone’s interest to consider the matter closed and for your client to write the debt off. I suggest you give serious consideration to this as any attempt of litigation will be vigorously defended and I will counter claim for all quantifiable damages

 

I respectfully request a response to this letter in 14 days